Copyright and First Amendment Law After 'The Wind Done Gone'

Recent litigation between the owner of copyrights in the book and movie Gone With the Wind and the publisher and author of The Wind Done Gone has surfaced a number of important U.S. copyright law and First Amendment issues for which there was little precedent. Among them are the following:

the potential conflict between the U.S. Copyright Act, 17U.S.C. 101 et. seq., with its provision for a preliminary injunction restraining distribution of an infringing literary work, and the First Amendment, which forbids laws restraining "speech," traditionally defined to include literary works;

the meaning of the "transformative use" defense to copyright infringement in a case involving literary works; and

whether the "parody" defense, previously applied only in music and photography cases, extends to the use of an entire novel and motion picture.

The Eleventh Circuit Court of Appeals has now provided some guidance with respect to these issues. See SunTrust Bank v. Houghton Mifflin, 252 F.3d 1165 (11th Cir. 2001) (vacating an injunction barring publication of The Wind Done Gone as a prior restraint of speech in violation of the First Amendment of the U.S. Constitution); and SunTrust Bank v. Houghton Mifflin, 60 U.S.P.Q.2d 1225 (11th Cir. 2001) (holding that although The Wind Done Gone used "the very same copyrighted characters, settings, and plot" as did the book and movie Gone With the Wind, Id. at 1232, it appeared from the record on appeal "that a viable fair use defense is available." Id. at 1240.

THE WORKS AT ISSUE

Gone With the Wind, reputedly second only to the Bible in book sales and the most popular motion picture of all time, is familiar to people on every continent. Alice Randall, an accomplished African American woman1 and author of The Wind Done Gone, first read and loved Gone With the Wind when she was twelve. See A Conversation with Alice Randall, appended to The Wind Done Gone, at 211. When she later reread the book, however, "an enormous question arose: Where are the mulattos on Tara?" Id. Gone With the Wind is a "South without miscegenation, without whippings, without families sold apart, without free blacks striving for their education, without Frederick Douglass." Id. In Gone With the Wind, blacks are "buffoonish [and] lazy, routinely compared to 'apes,' 'gorillas,' and 'naked savages.'" See Declaration of Alice Randall.2

In order to "add [her] voice" to the debate, Ms. Randall decided, in the words of her Houghton Mifflin editor, Anton Mueller, to "skewer [Gone With the Wind] for its treatment of African Americans." (Mueller Decl.). As the device for doing so, Ms. Randall chose parody - as opposed to academic criticism - because it would reach a wider audience.3

In pursuing her goal, Ms. Randall faced a daunting task for at least two reasons. First, Gone With the Wind covers three periods of history in which the portrayal of blacks progressively worsens.4 To parody Gone With the Wind at the first level, therefore, Ms. Randall did not believe she could not stop with ante-bellum characterizations of blacks, because "blacks during the Civil War are depicted in even more demeaning terms"; likewise, she could not "stop with the treatment during and immediately after the war, because blacks during Reconstruction are then represented in the most derogatory fashion of all." (Randall Decl.).

Second, while Gone With the Wind created, in the words of the plaintiff's expert, a "historical myth" (Rubin Aff.), it did so in the form of a novel of over a thousand pages containing more than 150 characters, many of whom stand for a black stereotype or represent a white Southern "ideal."5 At the second level, then, Ms. Randall could not parody the "Old South" generally because, in Gone With the Wind, the "Old South" is not presented generally: rather it is a construct of many individual characters. Thus, Ms. Randall could not parody only the stereotype represented by the slave Jeems, because different and distinct stereotypes are represented by the slaves Pork, Mammy and Prissy. And Ms. Randall could not parody only the "ideal" represented by Ellen, the mistress of Tara, because different "ideals" are represented by Scarlett, Gerald, Ashley, Melanie and Rhett. As Candler Professor of English Literature at Emory University John Sitter testified: "Given the scope of both its parodic intent and its parodic object, [The Wind Done Gone] could not effectively parody [Gone With the Wind] without making numerous allusions." (Sitter Supp. Decl.).

SUMMARY OF THE PROCEEDINGS BEFORE THE TRIAL AND APPELATE COURT

On March16, 2001, plaintiff SunTrust Bank filed a complaint in the United States District Court for the Northern District of Georgia against defendant Houghton Mifflin Company, alleging copyright and trademark infringement based on defendant's yet-to-be published novel The Wind Done Gone. On March 23, plaintiff filed a motion for a temporary restraining order and preliminary injunction barring the book's imminent publication. The district court held a hearing on the motion for a temporary restraining order on March 29, 2001 and then set down a second hearing for April 18, 2001.

On April 20, 2001, the district court filed a fifty-one (51) page order granting plaintiff's motion for a preliminary injunction, and enjoining defendant "from further production, display, distribution, advertising, sale, or offer for sale of the book The Wind Done Gone on the grounds that the book infringed the plaintiff's copyrights.6 SunTrust...